(A) natural persons of that Party; or
(B) juridical persons of that Party identified under point (j) (i);
Notwithstanding point (ii), shipping companies established outside the European Union or MERCOSUR and controlled by natural persons having the nationality of a Member State of the European Union or of a Signatory MERCOSUR State, respectively, shall also be beneficiaries of the provisions of this Chapter, if their vessels are registered in accordance with the laws and regulations in that Member State of the European Union or Signatory MERCOSUR State and fly the flag of a Member State of the European Union or of a Signatory MERCOSUR State (1);
(k) "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(l) "measures adopted or maintained by a Party" means measures taken by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
(m) "measures by Parties affecting establishment, the cross-border supply of services, consumption abroad, and the entry and temporary stay of natural persons" include measures in respect of:
(i) the purchase, payment or use of a service;
(ii) the access to and use of, in connection with the performance of an economic activity, services which are required by those Parties to be offered to the public generally; and
(iii) the access, including through establishment, of persons of a Party to the territory of the other Party to perform an economic activity in that territory;
(n) "natural person" means a person having the nationality, or a permanent resident (1), of one of the Signatory MERCOSUR States or one of the Member States of the European Union according to their respective legislation;
(o) "sector" of an economic activity means:
(i) with reference to a specific commitment, one or more, or all, subsectors of that service or non-service, as specified in the specific commitments contained in Annexes 10-A to 10-E; or
(ii) otherwise, the whole of that service or non-service sector, including all of its subsectors;
(p) "service supplier" means any person that seeks to supply or supplies a service (1); and
(q) "supply of a service" includes the production, distribution, marketing, sale and delivery of a service.
Article 10.3. Market Access
1. With respect to market access through establishment, the cross-border supply of services, consumption abroad, and the entry and temporary stay of natural persons as provided in Section B, each Party shall accord to enterprises, investors, services and services suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in the specific commitments contained in Annexes 10-A to 10-E.
2. In sectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt, either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in Annexes 10-A to 10-E, are defined as:
(a) limitations on the number of services suppliers or enterprises in the form of numerical quotas, monopolies, exclusive rights or the requirements of an economic needs test;
(b) limitations on the total value of transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of operations or on the total quantity of output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;
(d) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment;
(e) measures which restrict or require specific types of legal entity or joint ventures through which an investor or service supplier of the other Party may perform an economic activity; or
(f) limitations on the total number of natural persons that may be employed in a particular sector or that an enterprise may employ and who are necessary for, and directly related to, the performance of the economic activity in the form of numerical quotas or the requirement of an economic needs test.
3. Economic needs tests shall be described concisely and clearly, indicating the elements that render them inconsistent with this Article and specifying the criteria on which the test is based.
Article 10.4. National Treatment
1. In the sectors listed in Annexes 10-A to 10-E, and subject to any conditions and qualifications set out therein, with respect to all measures affecting establishment (1), the cross-border supply of services, consumption abroad and the entry and temporary stay of natural persons as provided in Section B, each Party shall accord to enterprises, investors, services and service suppliers of the other Party treatment no less favourable than that it accords to its own like enterprises, investors, services and service suppliers.
2. A Party may meet the requirement of paragraph 1 by according to enterprises, investors, services and services suppliers of the other Party either formally identical treatment or formally different treatment to that which it accords to its own like enterprises, investors, services and services suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of enterprises, investors, services or services suppliers of the Party compared to like enterprises, investors, services and services suppliers of the other Party.
4. Specific commitments assumed under this Article shall not be construed to require any Party to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant enterprises, investors, services or services suppliers.
Article 10.5. List of Specific Commitments
1. The sectors liberalised by each Party pursuant to this Chapter and, by means of reservations, the market access and national treatment limitations applicable to services, services suppliers, enterprises and investors of the other Party in those sectors are set out in Annexes 10-A to 10-E.
2. The Parties shall not apply any market access or national treatment restrictions other than those contained in Annexes 10-A to 10-E.
Section B. ENTRY AND TEMPORARY STAY OF NATURAL PERSONS SUPPLYING SERVICES AND FOR BUSINESS PURPOSES
Article 10.6. Scope
1. This Section applies to measures of a Party concerning the entry and temporary stay in its territory of key personnel, graduate trainees, business sellers, contractual service suppliers and independent professionals of the other Party in accordance with paragraphs 2 and 3.
2. The provisions of this Section do not apply to measures affecting natural persons seeking access to the employment market of a Party, nor to measures of a Party regarding citizenship, residence or employment on a permanent basis.
3. The provisions of this Section do not prevent either Party from applying measures necessary to regulate the entry, temporary stay and orderly movement of natural persons in its territory or to protect the integrity of its borders, if such measures do not nullify or impair the benefits accruing to either Party under the terms of a specific commitment (1).
4. Subject to Articles 10.17 and 10.18, nothing in this Section shall prevent a Party from requiring that natural persons possess the necessary qualifications or professional experience in the territory where the service is supplied, for the sector of activity concerned.
Article 10.7. Definitions
1. For the purposes of this Section, the following definitions apply:
(a) "business sellers" means natural persons who are representatives of a juridical person of a Party seeking entry and temporary stay in the territory of the other Party for the purpose of negotiating the sale of services or goods or entering into agreements to sell services or goods for that supplier. They do not engage in making direct sales to the general public, do not receive remuneration from a source located within the host Party and are not a commission agent;
(b) "contractual service suppliers" means natural persons employed by a juridical person of a Party which is not established in the territory of the other Party and which has concluded a contract to supply services with a final consumer in the latter Party requiring the presence on a temporary basis of its employees in that Party in order to fulfil the contract to provide services (1);
(c) "graduate trainees" means natural persons who have been employed by a juridical person of a Party for at least 1 (one) year, who possess a university degree and who are temporarily transferred to an enterprise in the territory of the other Party for career development purposes or to obtain training in business techniques or methods (2);
(d) "independent professionals" means natural persons engaged in the supply of a service and settled as self-employed in the territory of a Party who have not established in the territory of the other Party and who have concluded a contract to supply services with a final consumer in the territory of the other Party, requiring their presence on a temporary basis in that Party in order to fulfil the contract to provide services (3) ;
(e) "key personnel" means natural persons employed within a juridical person of a Party, other than a non-profit organisation, and who are responsible for the establishment or the proper control, administration and operation of an enterprise, and consists of:
(i) "business visitors": natural persons working in a senior position who are responsible for establishing an enterprise; they do not engage in direct transactions with the general public and do not receive remuneration from a source located within the host Party; and
(ii) "intra-corporate transferees": natural persons who have been employed by a juridical person of a Party, or have been partners in it, for at least 1 (one) year, who are temporarily transferred to an enterprise or a head office of that juridical person in the territory of the other Party and who belong to one of the following categories:
(A) managers:
Natural persons working in a senior position within a juridical person, who primarily direct the management of the enterprise receiving general supervision or direction principally from the board of directors or stockholders of the business or their equivalent, including:
– directing the enterprise or a department or sub-division thereof;
– supervising and controlling the work of other supervisory, professional or managerial employees; or
– having the authority personally to recruit and dismiss or to recommend recruiting, dismissing or other personnel actions;
(B) specialists:
Natural persons working within a juridical person who possess specialised knowledge essential to the enterprise's economic activity, techniques or management.
Article 10.8. Key Personnel and Graduate Trainees
For each sector for which commitments have been undertaken for establishment as listed in Annexes 10-B and 10-E, and subject to any reservations listed in Annexes 10-C and 10-E, each Party shall allow investors of the other Party to employ in their enterprise natural persons of that other Party, if such employees are key personnel or graduate trainees as defined in Article 10.7. The temporary entry and stay of key personnel and graduate trainees shall be:
(a) for the period of time necessary for the fulfilment of the contract or up to 3 (three) years for intra-corporate transferees, whichever is less;
(b) up to 60 (sixty) days in any period of 12 (twelve) months for business visitors; and
(c) up to 1 (one) year for graduate trainees.
Article 10.9. Business Sellers
For each sector for which commitments have been undertaken for the cross-border supply of services and for establishment, listed in Annexes 10-A, 10-B and 10-E, and subject to any reservations listed in Annexes 10-C and 10-E, each Party shall allow the temporary entry and stay of business sellers for a period of up to 90 (ninety) days in any period of 12 (twelve) months (1).
Article 10.10. Contractual Service Suppliers and Independent Professionals
1. For the sectors specified in Annexes 10-D and 10-E and subject to any reservations listed therein, each Party shall allow the supply of services into its territory by contractual service suppliers of the other Party, through the presence of natural persons, subject to the following conditions:
(a) the juridical person employing the natural person must have obtained a service contract for a period not exceeding 12 (twelve) months;
(b) the natural persons entering the other Party must have an appropriate education or experience relevant to the service to be provided;
(c) the natural person shall not receive remuneration for the supply of a service other than the remuneration paid by the contractual service supplier during the stay of the natural person in the other Party;
(d) the temporary entry and stay of natural persons in the territory of the Party concerned shall be for a cumulative period of not more than 6 (six) months in any period of 12 (twelve) months or for the duration of the contract, whichever is less; and
(e) access accorded pursuant to the provisions of this Article relates only to the service activity which is the subject of the contract and it does not confer entitlement on to natural persons to exercise the professional title of the Party where the service is provided.
2. For the sectors specified in Annexes 10-D and 10-E, and subject to any reservations listed therein, each Party shall allow the supply of services into its territory by independent professionals of the other Party, through the presence of natural persons, subject to the following conditions:
(a) the natural persons must have obtained a service contract for a period not exceeding 12 (twelve) months;
(b) the natural persons entering the other Party must have an appropriate education and professional qualifications relevant to the service to be provided;
(c) the temporary entry and stay of natural persons within the Party concerned shall be for a cumulative period of not more than 6 (six) months in any period of 12 (twelve) months or for the duration of the contract, whichever is less; and
(d) access accorded pursuant to the provisions of this Article relates only to the service activity which is the subject of the contract and it does not confer entitlement to the natural person to exercise the professional title of the Party where the service is provided.
Section C. REGULATORY FRAMEWORK
Subsection 1. PROVISIONS OF GENERAL APPLICATION
Article 10.11. Mutual Recognition
1. Nothing in this Chapter shall prevent a Party from requiring that natural persons possess the necessary qualifications or professional experience specified in the territory where the service is supplied, for the sector of activity concerned.
2. For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation, licensing or certification of investors and services suppliers, a Party may recognise the education or experience obtained, requirements met, or licences or certifications granted in the other Party. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement or may be accorded autonomously.
Article 10.12. Transparency
1. Each Party shall publish promptly, and except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application which pertain to or affect this Chapter.
2. The measures referred to in paragraph 1 shall include measures applying to all modes of supply, including on the process of entry and temporary stay of the categories of natural persons defined in Article 10.7. Information about these measures shall be kept up to date. Each Party shall facilitate access to relevant information by indicating to the other Party where relevant publications and websites can be found.
3. If publication of the measures referred to in paragraph 1 is not practicable, such measures shall be made otherwise publicly available.
4. Each Party shall respond promptly to all requests by the other Party for specific information on any of its relevant measures of general application referred to in paragraph 1, including measures regarding the entry and temporary stay of services suppliers as referred to in paragraph 2.
5. Each Party shall establish one or more enquiry points to provide specific information to services providers of the other Party, upon request, on any of its measures of general application referred to in paragraph 1. The Parties shall notify each other of these enquiry points no later than one year after the entry into force of this Agreement. Enquiry points need not be depositories of laws and regulations.
6. Nothing in this Chapter shall require any Party to provide confidential information, the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
Subsection 2. DOMESTIC REGULATION
Article 10.13. Scope
1. This Sub-Section only applies to sectors for which a Party has undertaken specific commitments as listed in Annexes 10-A to 10 E and to the extent that these specific commitments apply.
2. This Sub-Section does not apply to measures to the extent that they constitute limitations pursuant to Articles 10.3 and 10.4.
3. In sectors where specific commitments are undertaken as listed in Annexes 10-A to 10-E, each Party shall ensure that all measures of general application affecting trade in services and establishment are administered in a reasonable, objective and impartial manner.
4. Each Party shall comply with this Sub-Section with regard to measures relating to licensing requirements and procedures and qualification requirements and procedures.
5. This Sub-Section applies to measures of each Party relating to licensing and qualification requirements and procedures that affect:
(a) the cross-border supply of services;
(b) the establishment in their territory of an enterprise defined in Article 10.2; or
(c) the temporary stay in their territory of categories of natural persons defined in Article 10.2.
Article 10.14. Definitions
For the purposes of this Sub-Section:
(a) "competent authority" means any central, regional or local government or authority, or any non-governmental body in the exercise of powers delegated by central, regional or local governments or authorities and which is entitled to take a decision concerning the authorisation to supply a service, or concerning the authorisation to establish an enterprise in order to perform an economic activity;
(b) "licensing procedures" means administrative and procedural rules that a service supplier or an investor seeking authorisation to supply a service or to establish an enterprise must adhere to in order to demonstrate compliance with licensing requirements;
(c) "licensing requirements" means substantive requirements other than qualification requirements with which a services supplier or investor is required to comply in order to obtain, from a competent authority, a decision concerning the authorisation to supply a service or concerning the authorisation to establish an enterprise in order to perform an economic activity, including a decision to amend or renew such authorisation;
(d) "qualification procedures" means administrative or procedural rules that a natural person must adhere to in order to demonstrate compliance with qualification requirements, for the purpose of obtaining authorisation to supply a service; and
(e) "qualification requirements" means substantive requirements relating to the competence of a natural person to supply a service and which are required to be demonstrated for the purpose of obtaining authorisation to supply a service.
Article 10.15. Conditions for Licensing
1. Measures of each Party relating to licensing requirements shall be based on criteria which are:
(a) proportionate to a public policy objective;
(b) clear and unambiguous;
(c) objective; and
(d) made public in advance.
2. A licence should be granted by the competent authority as soon as it is established, in the light of an appropriate examination, that the conditions for obtaining a licence have been met.
3. If the number of licences available for a given activity is limited because of the scarcity of available natural resources or technical capacity, each Party shall select candidates through an impartial and transparent selection procedure which provides, in particular, adequate publicity about the launch, conduct and completion of the procedure. Subject to the provisions specified by this Article, each Party may take into account public policy objectives when establishing the rules for the selection procedures.
Article 10.16. Licensing Procedures
1. Licensing procedures shall be clear and made public in advance. Each Party shall ensure that the licensing procedures used by, and the related decisions of, their competent authorities are objective and impartial with respect to all applicants.
2. Licensing procedures shall not be dissuasive and shall not unduly complicate or delay the provision of the service.
3. Any licensing fees (1) which applicants may incur from their application shall be reasonable and shall not in themselves restrict the supply of the service. To the extent practicable, those fees should be proportionate to the cost of the licensing procedures in question.
4. The competent authorities of a Party shall, to the extent practicable, provide an indicative timeframe for processing an application. Applications shall be processed within a reasonable period of time. The period shall run only from the time when all documentation has been received by the competent authorities. If justified by the complexity of the issue, the time period may be extended, by the competent authority, for a reasonable time. The extension and its duration shall be duly motivated and shall be notified to the applicant, to the extent practicable, before the original period has expired.
5. In the case of an incomplete application, the applicant shall be informed as quickly as possible of the need to supply any additional documentation. In such a case, the period referred to in paragraph 4 may be suspended by the competent authorities until they have received all documentation.
6. If a request is rejected because it fails to comply with the required procedures or formalities, the applicant shall be informed of the rejection and of the available means of redress as quickly as possible.
Article 10.17. Qualification Requirements
1. Qualification requirements shall be based on criteria which are:
(a) proportionate to a public policy objective;
(b) clear and unambiguous;
(c) objective; and
(d) made public in advance.
2. If a Party imposes qualification requirements for the supply of a service, it shall ensure that adequate procedures exist for the verification and assessment of qualifications held by service suppliers of the other Party. If the competent authority of a Party considers that membership in a relevant professional association in the territory of another Party is indicative of the level of competence or extent of experience of the applicant, such membership shall be given due consideration.
3. For the supply of professional services, the scope of examinations and of any other qualification requirements by a competent authority shall be related to the rights to practise a profession for which authorisation is being sought, so as to avoid unduly restricting persons of the other Party from applying.
4. Provided that an applicant has presented all necessary supporting evidence of his or her qualifications, the competent authority, in verifying and assessing such qualifications, shall identify any deficiency and inform the applicant of requirements to meet this deficiency. Such requirements may include course work, examinations and training. The presentation by an applicant of a Party of evidence of qualifications obtained in the territory of a third country shall not in itself constitute an a priori reason for the competent authority of the other Party to reject the application and refrain from making an assessment of the qualifications presented.
5. If examinations are required, each Party shall ensure that they are scheduled at reasonably frequent intervals. Applicants for examinations shall be allowed a reasonable period to submit applications.
6. Once qualification requirements and any other applicable regulatory requirements have been fulfilled, each Party should ensure that a service supplier is allowed to supply the service without undue delay.
Article 10.18. Qualification Procedures
1. Qualification procedures shall be based on criteria which are:
(a) clear and unambiguous;
(b) objective; and
(c) made public in advance.
2. Each Party shall ensure that the qualification procedures used by, and the related decisions of, their competent authorities are impartial with respect to all applicants.
3. An applicant shall, in principle, not be required to approach more than 1 (one) competent authority for qualification procedures.
4. If specific time periods for applications exist, an applicant shall be allowed a reasonable period for the submission of an application. The competent authority shall initiate the processing of an application without undue delay. To the extent practicable, the competent authority shall accept applications in electronic format under the same conditions of authenticity as an application submitted in paper format.
5. Authenticated copies should be accepted by the competent authority, if possible, in place of original documents.